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Tajamul Ali Laskar Vs. Abdul Rahman and ors. - Court Judgment

LegalCrystal Citation
Subject;Criminal
CourtGuwahati High Court
Decided On
Judge
AppellantTajamul Ali Laskar
RespondentAbdul Rahman and ors.
Prior history
K. Lahiri, J.
1. This is a purported appeal from an order of acquittal passed by the Sub-divisional Judicial Magistrate, Hailakandi in G.R. Case No. 940 of 1974 acquitting 12 accused persons of the charges under Section 143 read with Section 379 of the I.P.C.
2. About 10 years ago a paddy theft was allegedly committed by 12 accused persons. Since 1974 these 12 persons were taken care of by the police men, and had the rigours and mortifications of attending court on innumerable occasions. Perha
Excerpt:
.....held that the prosecution had failed to establish that the land in dispute was in possession of the first informant. the first information clearly depicts that there was no case of plucking of seedlings nor was it the case of the prosecution in court. some of the witnesses clearly stated that they were not sure as to who had grown the paddy. we have also perused the evidence and we agree with the learned magistrate that the prosecution had failed to prove its case beyond all reasonable doubt. a revision against an order of acquittal can be entertained only in exceptional cases where the interest of justice requires interference for the correction of a manifest illegality or preventing a gross miscarriage of justice......order of acquittal is passed in any case in which the offence has been investigated by the delhi special police establishment constituted under the delhi special police establishment act, 1946 (25 of 1946) or by any other agency empowered to make investigation into an offence under any central act other than this code, the central government may also direct the public prosecutor to present an appeal, subject to the provisions of sub-section (3), to the high court from the order of acquittal.(3) no appeal under sub-section (1) or sub-section (2) shall be entertained except with the leave of the high court.(4) if such an order of acquittal is passed in any case instituted upon complaint and the high court, on an application made to it by the complainant, in this behalf, grants special.....
Judgment:

K. Lahiri, J.

1. This is a purported appeal from an order of acquittal passed by the Sub-divisional Judicial Magistrate, Hailakandi in G.R. Case No. 940 of 1974 acquitting 12 accused persons of the charges under Section 143 read with Section 379 of the I.P.C.

2. About 10 years ago a paddy theft was allegedly committed by 12 accused persons. Since 1974 these 12 persons were taken care of by the police men, and had the rigours and mortifications of attending court on innumerable occasions. Perhaps the persons around the place have forgotten and wiped out from their memory the 'tiny incident'. However the first informant desires to disinter the case from the graveyard and to get a conviction of those 12 accused, upon setting aside the order of acquittal. It is true that the present appellant had filed a complaint in court but the learned Magistrate found that it was a fit case for police investigation and directed the police to investigate the matter. Accordingly, the police treated the complaint as the first information report and a Govt, Report case was registered, investigated and charge sheet submitted by the police.

3. The allegations against the accused who are related to each other that they formed an unlawful assembly and reaped away the paddy grown by the complainant. The incident happened on 5.12.74 in broad day light, in presence of all and sundry. In short, it was not surreptitiously 'taking' but an open act. Even the accused openly stored the paddy in the house of Respondents 1 and 2. What was recovered? One and half maunds of paddy in the court-yard of accused Abdul Rahman and a bundle of paddy seedlings, Therefore, the subject-matter of the offence was only 1 maunds of paddy. So, we say that it was a tempest in a tea pot1 to bring such a tiny matter to this court. Be that as it may, the prosecution examined witnesses in support of their case and the learned Magistrate, on appreciation of the evidence reached the conclusion that the prosecution had failed to prove the case beyond reasonable doubt. The learned Magistrate held that the prosecution had failed to establish that the land in dispute was in possession of the first informant. It follows, therefore, that the learned Magistrate concluded that the prosecution could not establish, that the paddy in question was grown by the complainant. The learned Magistrate also disbelieved the story of cutting and removal of the paddy. How is it that when ripe paddy was allegedly cut, how could the first informant claim that the seized seedlings were his property? The first information clearly depicts that there was no case of plucking of seedlings nor was it the case of the prosecution in court. Why did the first informant permit seizure of the seedlings, thereby destroying the paddy seedlings was it not ulterior? Let us pass over the matter and proceed to consider the findings of the learned Magistrate, the complainant himself gave out two versions of the story which could not be reconciled with each other. The month of the occurrence was altered from Agrahan to chaitra, a long gap of four months in between. Even the first informant and his witnesses gave different versions as to the precise land from which the paddy had been cut and taken away. Some of the witnesses categorically stated that the paddy was 'never removed by any of the accused. Some of the witnesses clearly stated that they were not sure as to who had grown the paddy. There were various discrepancies, for which the learned Magistrate, who had recorded the evidence, could not pin faith and confidence in the prosecution witnesses and accordingly granted benefit of doubt to the accused, which they were surely entitled to. We have also perused the evidence and we agree with the learned Magistrate that the prosecution had failed to prove its case beyond all reasonable doubt.

4. However, there is another crucial snag, apart from the merit of the case, namely the question of maintainability of the appeal. While granting special leave to the first informant this Court observed as follows:

Special leave to appeal is granted subject to any objection that may be raised regarding the maintainability of the appeal inasmuch as the order of acquittal was passed in a G.R. Case.

5. Admittedly, this is a Government Report Case and the first informant has filed the appeal. According to Mr. S.A. Laskar, learned Counsel for the respondents the appeal is not maintainable. We are of the firm view that the appeal from the order of acquittal is not maintainable. In order to adjudge the maintainability, let us peruse Section 378 of the Criminal P.C.:

378. Appeal in case of acquittal.- (1) save as otherwise provided in Sub-section (2) and subject to the provisions of Sub-sections (3) and (5), the State Government may in any case, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of acquittal passed by any court other than a High Court.

(2) If such an order of acquittal is passed in any case in which the offence has been investigated by the Delhi Special Police Establishment constituted under the Delhi Special Police Establishment Act, 1946 (25 of 1946) or by any other agency empowered to make investigation into an offence under any Central Act other than this code, the Central Government may also direct the Public Prosecutor to present an appeal, subject to the provisions of Sub-section (3), to the High Court from the order of acquittal.

(3) No appeal under Sub-section (1) or Sub-section (2) shall be entertained except with the leave of the High Court.

(4) If such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant, in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court.

(5) No application under Sub-section (4) for the grant of special leave to appeal from an order of acquittal shall be entertained by the High Court after, the expiry of six months, where the complainant is a public servant, and sixty days in every other case, computed from the date of that order of acquittal.

(6) If, in any case, the application under Sub-section (4) for the grant of special leave to appeal from an order of acquittal is refused, no appeal Irons that order of acquittal shall lie under Sub-section (1) or under Sub-section (2).

(Emphasis added)

It will be seen on bare perusal of the section that Sub-section (1) empowers the State Govt. to prefer any appeal from an order of acquittal 'in any case'. The expressions 'in any case' include (a) Government Report Cases (b) Cases covered by Sub-section (2), namely the case investigated by the Delhi Special Police Establishment constituted under the Delhi Special Police Establishment Act, 1946, and cases investigated by any of her agency empowered to make investigation into any offence under any Central Act, other than the Criminal P.C. (c) Cases instituted upon complaint, no matter whether the complainant is a public servant or any other complainant. If we turn to Sub-section (4) we find that in a case instituted upon complaint the High Court can grant 'special leave' to appeal from the order of acquittal. However, there is no provision in Section 378 of the Code, which enables or confers any right to a first informant to prefer an appeal from an order of acquittal passed in a Govt. Report case. The provisions of Section 378 of the Code make it very clear that only in cases instituted upon complaint the complainant has been conferred the right to prefer an appeal from the order of acquittal. In the instant case, the order of acquittal has been passed in a Govt. Report case and the provisions of Section 378 do not permit a complainant to prefer any appeal against the order of acquittal passed in Govt. Report cases. Whenever a case is taken cognizance by the police and Govt. Report case is registered and investigated and tried as such, the nature of the case remains unaltered. It remains a Govt. Report case and their appeal ability has to be judged in terms of the provisions contained in Section 378 of 'the Code'. In the instant case, the State did not think it proper to direct the Public Prosecutor to present any appeal to the High Court from the order of acquittal. Therefore, the only authority who could have preferred the appeal from the order of acquittal did not prefer the same and instead, the first informant has filed the appeal in a G.R. Case. In our opinion, a complainant is not competent to prefer an appeal from an order of acquittal in G.R. Case m view of the clear provisions contained in Section 378 of 'the Code'. This was the main reason why this Court, while granting special leave, kept open the question of maintainability of the appeal, which we have decided today, against the appellant and in favour of the accused. We hold that the appeal is incompetent.

6. Now, there is no prayer made by the appellant to treat the Memo, of appeal as a revision nor is there any alternative revision application, in spite of the fact that this Court had expressed doubt as to the maintainability of the appeal. Even treating this memo, of appeal as revision petition, we do not find that the case is covered by the provisions of Section 401 of the Code. A revision against an order of acquittal can be entertained only in exceptional cases where the interest of justice requires interference for the correction of a manifest illegality or preventing a gross miscarriage of justice. The trial Court had jurisdiction to try the case. The court never shut out any evidence which the prosecution had desired to adduce. It is not a case where inadmissible evidence was admitted and used in favour of the accused or material evidence has been overlooked by the trial court. There is no question of miscarriage of justice in the instant case.

7. In the result, we hold that the appeal and/or the application has no merit and accordingly it is dismissed.


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